28 Months Later

Since I’m stuck at home while the ice storm pounds Indiana (1.5″ of sleet so far), let’s try out this hypothetical. It’s inspired by the Hall article on the individual mandate.

Suppose this summer an epidemic breaks out that involves a contagious pathogen. The disease does significant damage to interstate commerce because people die, others miss work, and quarantines must be imposed in an attempt to contain the outbreak. Within a year, though, a vaccine is developed by Pfizer and they get a patent. Lots of people buy the vaccine and have it administered. Lots of people do not. They’re concerned about possible side-effects (including getting the disease). Their failure to take the vaccine, though, means that the menace cannot be eradicated.

To end this plague once and for all, Congress passes a statute under its Commerce Clause authority that requires everyone who has not taken the vaccine to buy it from Pfizer and get their shots. Compulsory vaccination at the state level has already been upheld by the Court, so there is no liberty interest involved. The only valid constitutional claim is that Congress can’t compel activity or regulate inactivity under the Commerce Clause. Would (and should) this statute be upheld? I think that the answer is yes.

This points up a big problem with the activity/inactivity distinction. It does not take externalities into account. In other words, no matter how much my inactivity (or the aggregated inactivity of the similarly situated) burdens interstate commerce, Congress cannot respond. Now if you think that the hypothetical law is constitutional, then all you’re doing is judging the necessity of congressional action. It’s not a firm line–it’s just a balancing test. Now perhaps heightened scrutiny should be given to the regulation of inaction (that is one way to square the circle), but that’s not what the opponents of the individual mandate are arguing.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

14 Responses

Well, put, Gerard. Note also that, under your clear reasoning, allowing mandatory measures in a pandemic does NOT permit mandating any old health measure, such as EATING broccoli or getting routine check-ups — as Judge Vinson imagined. A purchase mandate, after allow, at most allows mandates to BUY broccoli, but not to eat it. Forced eating entails liberty, privacy and bodily integrity issues not at all implicated by forced purchase. The judge’s conflating of the two realms suggests a Lochner-esque equivalence of economic and personal liberties. But remembering the proper bounds of substantive due process helps to address the Judge’s slippery slope concerns. And, more to your point, the contrast between mandatory vaccines and mandatory broccoli demonstrates that much more harm might be done by absolutely prohibiting any regulation of inactivity than by allowing this instance and worrying later about whether Congress will run wild with its expanded powers.

Here’s what I’ve been wondering. Requiring car insurance is constitutional, even to the Judge Vinson types, because you don’t have to buy it — you only need to buy it if you want to drive a car. Well, what if we allow hospitals to refuse service to individuals who don’t have health insurance? Or, say, allow hospitals to require either insurance or the money up front? I don’t want to see a system where anyone can be refused life-saving treatment. But that’s the endgame for this particular libertarian paradigm, no?

Could Congress “find” that poor nutritional habits across the country cause all kinds of expensive medical problems that could be mitigated or avoided through better eating, including copious consumption of broccoli, brussel sprouts, cod liver oil, and so on?

I take Mark Hall’s point that this implicates liberty concerns, but that doesn’t address the scope of the Commerce Clause. In other words, if the forced eating of broccoli is unconstitutional, is it a valid exercise of the Commerce Clause power that violates Due Process? Or is it an invalid exercise of the Commerce Clause?

Oh goodness, another wrongheaded Lochner reference. Remember, that line of cases addressed protection of individual rights, not boundaries of government power.

The mandate would be unconstitutional as well. The states could purchase the vaccine or mandate its purchase instead. Some people wouldn’t get vaccinated, just as some people today don’t get vaccinated against polio or the mumps, but somehow life goes on. If it got bad enough the constitution could be amended, either through more commonly invoked means or less-discussed constitutional convention.

Finish the hypo – what if the people refuse? Are they fined (pre-enactment)/taxed (post-enactment)? Are they strapped down and administered the vaccine? Are they put into jail? Are they segreagated into red states?

…and how about this hypo: What if, in complying with the mandate to buy the vaccine, a young lady – 16 years-old and pregnant – ends up without enough money to cross state lines without her parents knowledg to get an abortion?
…or…
What if this turns out to be the last straw and illegal immigrants leave in droves thus (according to progressive orthodoxy) decimating our economy…hey this hypo stuff is fun!!

My hypo is more realistic than the ones about Congress making you eat broccoli or exercise three hours a day.

Fair enough, and obviously there would some issues about how the government would enforce the hypothetical “eating healthy” law. That said, if I understand you correctly, you are essentially using the John Hart Ely response — “it couldn’t happen.” That’s probably right.

But if that is how you are going to respond to the “eating healthy” law, what you seem to be saying is that there are no judicially enforceable limits to the Commerce Clause, only political checks.

What the heck do externalities have to do with constitutionality? Is the Constitution supposed to magically never mean that a good policy is unconstitutional? I take your implication that if following the Constitution had bad enough consequences, we’d decide to stop following it. But that wouldn’t change the Constitution, just mean it was being violated.

I guess I’m still wondering why my proposed “eating healthy” law, which also addresses the externalities imposed by people with avoidable health care costs, would not be a valid exercise of the Commerce Clause power. Or maybe it would be a valid, if unlikely, exercise of the power?

Gerard, what is missing is why there would not, and somehow could not, be simply 50 state laws that mandated vaccination. The hypo assumes that somehow if government action is required, it must be federal action.

Also, saying that the “activity/inactivity distinction is not in the Constitution” is kind of assuming the answer to the question. Everyone agrees that the Constitution doesn’t mean that every good policy is constitutionally allowed/mandated and every bad policy is constitutionally forbidden — your prior post notwithstanding — but there is no such consensus about whether the activity/inactivity distinction is inherent in the word “Commerce”.

There could be fifty states laws that required vaccination. So one issue is do you think such a state law would be constitutional? Of course I agree that certain things can be done by states but can’t be done by the feds. My problem, I suppose, is that the talk about the “right” to be free from compulsory purchases doesn’t make sense.

I also agree that there is no consensus about the activity/inactivity distinction. We’re all trying to figure out whether that line makes sense. The externality argument is just one way of probing that.

Finally, I didn’t say that I think really good=constitutional and really bad=unconstitutional. What I said was that this is how most courts behave when they assess constitutional questions (though the First Amendment is an exception to some extent). Since there is no way to define “really” in a way that does any useful work, that’s not a helpful observation except in a few cases (say, when only one state adopts a policy that the other forty-nine condemn).

But while admittedly there is some rhetoric out there tending to suggest some libertarians are getting a little over-excited, the activity/inactivity argument is still only about the Commerce Clause. I have not seen a real argument that no legislature may impose a mandate for anything. As you note, the Supreme Court in Jacobson has already upheld a state mandate requiring activity (and penalizing inactivity). More to the point, surely Congress can penalize some types of inactivity under its non-Commerce clause powers, for example to draft citizens into the army and to require selective service registration. Failing to register for the draft is “inactivity,” but Congress is not deriving its power from the Commerce Clause and so there is no argument there. Or, at least, that argument has long been lost.